Académique Documents
Professionnel Documents
Culture Documents
INDIVIDUAL RIGHTS
AND THE AMERICAN
CONSTITUTION
FOURTH EDITION
DOUGLAS W. KMIEC
U.S. Ambassador (ret.)
Caruso Family Chair in Constitutional Law & Human Rights
Pepperdine University
STEPHEN B. PRESSER
Raoul Berger Professor of Legal History
Northwestern University School of Law
JOHN C. EASTMAN
Henry Salvatori Professor of Law & Community Service and Former Dean
Chapman University Dale E. Fowler School of Law
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Copyright © 2014 Carolina Academic Press, LLC. All rights reserved.
TABLE OF CONTENTS
Chapter 1 THE DECLARATION AND ITS CONSTITUTION . . . . . . 1
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Chapter 2 A GOVERNMENT RESPECTFUL OF INDIVIDUAL
CONSCIENCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
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Wallace v. Jaffree . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122
Notes and Questions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 134
D. THE FREE EXERCISE CLAUSE — GOVERNMENT MAY NOT
PROHIBIT RELIGIOUS EXPRESSION . . . . . . . . . . . . . . . . . . . . . . . 137
1. Distinguishing Between Religious Belief and Religious Practice . . . . . 137
Reynolds v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 138
Notes and Questions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141
Wisconsin v. Yoder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142
Notes and Questions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150
2. Judicial Inquiry into the Sincerity, But Not the Validity, of Religious
Belief . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 153
United States v. Ballard . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 154
Note . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 156
3. More than Theism, But How Much More? . . . . . . . . . . . . . . . . . . . . 156
United States v. Seeger . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 157
Notes and Questions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 161
4. Prohibitions or Burdens? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 161
Sherbert v. Verner . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 162
5. No Religious Exemption from Neutral, Generally Applicable Laws . . . 169
Employment Division v. Smith . . . . . . . . . . . . . . . . . . . . . . . . . . . 169
Note . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 179
City of Boerne v. Flores . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 181
Notes and Questions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 186
Gonzales v. O Centro Espirita Beneficente Uniao Do Vegetal . . . . 187
6. The “Ministerial Exception” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 192
Hosanna-Tabor v. EEOC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 192
Notes and Questions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 203
I.
THE SUBSTANTIVE PROTECTION OF VESTED RIGHTS . . . . . . . . . . . 205
A. THE PROTECTION OF CONTRACT AGAINST STATE
IMPAIRMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 205
1. The Precipitating Hardship . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 205
2. Debate in Convention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 206
2 The Records of the Federal Convention 434, 439–40 . . . . . . . . . . 206
3. Post-Convention Justification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 208
THE FEDERALIST NO. 7 (Alexander Hamilton) . . . . . . . . . . . . . . . . 208
THE FEDERALIST NO. 44 (James Madison) . . . . . . . . . . . . . . . . . . 208
Note . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 209
3 JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION
(1833) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 209
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a. Prohibiting Retrospective Debtor Relief . . . . . . . . . . . . . . . . . . . . . 210
b. Extension to Public Contracts . . . . . . . . . . . . . . . . . . . . . . . . . . . . 212
Notes and Questions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 215
c. The Reserved Police Power . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 217
Home Building & Loan Ass’n v. Blaisdell . . . . . . . . . . . . . . . . . 219
Notes and Questions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 225
B. THE PROTECTION OF PROPERTY . . . . . . . . . . . . . . . . . . . . . . . . . 232
1. Historical and Philosophical Justification . . . . . . . . . . . . . . . . . . . . . 232
WILLIAM BRADFORD, OF PLYMOUTH PLANTATION . . . . . . . . . . . . 233
Notes and Questions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 233
JOHN LOCKE, SECOND TREATISE OF GOVERNMENT . . . . . . . . . . . . 233
Notes and Questions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 238
Kelo v. City of New London, Connecticut . . . . . . . . . . . . . . . . . . . 240
Notes and Questions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 249
2. Regulatory Takings and the Supreme Court . . . . . . . . . . . . . . . . . . . . 251
Notes and Questions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 260
Koontz v. St. Johns River Water Management District . . . . . . . . . . 262
Notes and Questions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 273
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Notes and Questions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 348
3. Ascertaining Content and Viewpoint Discrimination by the
Government . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 350
Hill v. Colorado . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 350
Notes and Questions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 361
4. Qualified Speech Protection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 365
a. Libel and the “Actual Malice” Standard . . . . . . . . . . . . . . . . . . . . . 365
New York Times Co. v. Sullivan . . . . . . . . . . . . . . . . . . . . . . . . 365
Notes and Questions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 377
b. Commercial Speech . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 379
Central Hudson Gas & Electric Corp. v. Public Service
Commission of New York . . . . . . . . . . . . . . . . . . . . . . . . . . . . 379
Notes and Questions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 388
5. Do Actions Speak as Loud as Words? Expressive Conduct and the
First Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 394
a. Draft Card Burning . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 394
United States v. O’Brien . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 394
Notes and Questions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 400
b. Flag Burning . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 401
Texas v. Johnson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 401
Notes and Questions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 413
c. Obscenity and Pornography . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 415
Barnes v. Glen Theatre, Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . 415
Notes and Questions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 425
d. Expressions of Hate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 435
Wisconsin v. Mitchell . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 438
Notes and Questions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 442
Snyder v. Phelps . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 444
Notes and Questions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 453
6. Special Contexts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 455
a. Government Speech . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 455
Agency for International Development v. Alliance for Open
Society International, Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 455
Notes and Questions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 463
b. Public Employee Speech . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 472
Garcetti v. Ceballos . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 472
Notes and Questions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 483
c. Speech Within Private Associations . . . . . . . . . . . . . . . . . . . . . . . . 491
Roberts v. United States Jaycees . . . . . . . . . . . . . . . . . . . . . . . 491
Notes and Questions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 501
Boy Scouts of America v. Dale . . . . . . . . . . . . . . . . . . . . . . . . . 501
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Notes and Questions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 512
B. THE SECOND AMENDMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 527
District of Columbia v. Heller . . . . . . . . . . . . . . . . . . . . . . . . . . . . 528
Notes and Questions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 561
C. ECONOMIC LIBERTY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 564
1. Privileges and Immunities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 564
a. Historical Origins . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 565
James Wilson, Of Man, as a Member of a Confederation —
A History of Confederacies . . . . . . . . . . . . . . . . . . . . . . . . . . . 566
b. Giving Definition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 567
Notes and Questions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 570
2. Privileges or Immunities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 572
Notes and Questions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 573
Saenz v. Roe . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 578
Notes and Questions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 587
3. Substantive Economic Due Process . . . . . . . . . . . . . . . . . . . . . . . . . 589
Lochner v. New York . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 591
Notes and Questions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 596
United States v. Carolene Products Co. . . . . . . . . . . . . . . . . . . . . 601
Notes and Questions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 603
A. RACE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 608
1. Slavery . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 608
Records of the Federal Convention . . . . . . . . . . . . . . . . . . . . . . . . 608
Pennsylvania Ratifying Convention . . . . . . . . . . . . . . . . . . . . . . . 610
FEDERALIST NO. 42 (Madison) . . . . . . . . . . . . . . . . . . . . . . . . . . . 611
Scott v. Sandford . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 613
Notes and Questions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 617
2. Civil Rights and Non-Discrimination . . . . . . . . . . . . . . . . . . . . . . . . 620
Plessy v. Ferguson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 620
Brown v. Board of Education . . . . . . . . . . . . . . . . . . . . . . . . . . . 628
Notes and Questions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 631
3. Vestiges of Discrimination — The Difficulty of Past Racial Effect . . . . 632
Freeman v. Pitts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 632
Notes and Questions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 647
4. Proving Discriminatory Intent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 648
Washington v. Davis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 648
Notes and Questions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 653
5. Civil Right or Preference? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 657
Adarand Constructors, Inc. v. Pena . . . . . . . . . . . . . . . . . . . . . . . 659
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Notes and Questions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 672
Grutter v. Bollinger . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 676
Notes and Questions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 695
Miller v. Johnson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 703
Notes and Questions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 717
B. NUMERICAL EQUALITY — ONE PERSON/ONE VOTE . . . . . . . . . 721
Reynolds v. Sims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 723
Notes and Questions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 736
Bush v. Gore . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 739
Notes and Questions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 747
C. GENDER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 753
Minor v. Happersett . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 753
Notes and Questions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 756
United States v. Anthony . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 756
Notes and Questions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 758
United States v. Virginia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 760
Notes and Questions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 775
D. SEXUAL ORIENTATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 778
Romer v. Evans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 778
Notes and Questions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 784
United States v. Windsor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 786
Notes and Questions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 800
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Michael H. v. Gerald D. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 834
Notes and Questions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 841
B. THE NINTH AMENDMENT — A RIGHT OF PRIVACY? . . . . . . . . . 842
1. Contraception . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 842
Griswold v. Connecticut . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 842
Notes and Questions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 854
Eisenstadt v. Baird . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 856
Notes and Questions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 860
2. Abortion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 862
Roe v. Wade . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 863
Notes and Questions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 877
Planned Parenthood of Southeastern Pennsylvania v. Casey . . . . . 880
Notes and Questions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 891
Gonzales v. Carhart . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 899
Notes and Questions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 914
3. Assisted Suicide . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 917
Washington v. Glucksberg . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 917
Vacco v. Quill . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 930
Notes and Questions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 933
4. Homosexual Conduct . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 936
Lawrence v. Texas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 938
Notes and Questions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 952
Index . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I-1
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JOHN HANCOCK
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Delaware Georgia
CAESAR RODNEY BUTTON GWINNETT
GEO. READ LYMAN HALL
THO. M’KEAN GEO. WALTON
Maryland
SAMUEL CHASE
WM. PACA
THOS. STONE
CHARLES CARROLL of Carrollton
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Article I.
Section 1. All legislative Powers herein granted shall be vested in a Congress of the United States,
which shall consist of a Senate and House of Representatives.
Section 2. The House of Representatives shall be composed of Members chosen every second Year
by the People of the several States, and the Electors in each State shall have the Qualifications
requisite for Electors of the most numerous Branch of the State Legislature.
No person shall be a Representative who shall not have attained to the Age of twenty five Years,
and been seven Years a Citizen of the United States, and who shall not, when elected, be an
Inhabitant of that State in which he shall be chosen.
[Representatives and direct Taxes shall be apportioned among the several States which may be
included within this Union, according to their respective Numbers, which shall be determined by
adding to the whole Number of free Persons, including those bound to Service for a Term of Years,
and excluding Indians not taxed, three fifths of all other Persons.] The actual Enumeration shall be
made within three Years after the first Meeting of the Congress of the United States, and within
every subsequent Term of ten Years, in such Manner as they shall by Law direct. The Number of
Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least
one Representative; and until such enumeration shall be made, the State of New Hampshire shall be
entitled to chuse three, Massachusetts eight, Rhode-Island and Providence Plantations one,
Connecticut five, New-York six, New Jersey four, Pennsylvania eight, Delaware one, Maryland six,
Virginia ten, North Carolina five, South Carolina five, and Georgia three.
When vacancies happen in the Representation from any State, the Executive Authority thereof shall
issue Writs of Election to fill such Vacancies.
The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole
Power of Impeachment.
Section 3. The Senate of the United States shall be composed of two Senators from each State,
chosen by the Legislature thereof, for six Years; and each Senator shall have one Vote.
Immediately after they shall be assembled in Consequence of the first Election, they shall be
divided as equally as may be into three Classes. The Seats of the Senators of the first Class shall be
vacated at the Expiration of the second Year, of the second Class at the Expiration of the fourth
Year, and of the third Class at the Expiration of the sixth Year, so that one third may be chosen
every second Year; and if Vacancies happen by Resignation, or otherwise, during the Recess of the
Legislature of any State, the Executive thereof may make temporary Appointments until the next
Meeting of the Legislature, which shall then fill such Vacancies.
No Person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine
Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State
for which he shall be chosen.
The Vice President of the United States shall be President of the Senate, but shall have no Vote,
unless they be equally divided.
The Senate shall chuse their other Officers, and also a President pro tempore, in the Absence of the
Vice President, or when he shall exercise the Office of President of the United States.
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Article II
Section 1. The executive Power shall be vested in a President of the United States of America. He
shall hold his Office during the Term of four Years, and, together with the Vice President, chosen
for the same Term, be elected as follows
Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of
Electors, equal to the whole Number of Senators and Representatives to which the State may be
entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or
Profit under the United States, shall be appointed an Elector.
The Electors shall meet in their respective States, and vote by Ballot for two Persons, of whom one
at least shall not be an Inhabitant of the same State with themselves. And they shall make a List of
all the Persons voted for, and of the Number of Votes for each; which List they shall sign and
certify, and transmit sealed to the Seat of the Government of the United States, directed to the
President of the Senate. The President of the Senate shall, in the Presence of the Senate and House
of Representatives, open all the Certificates, and the Votes shall then be counted. The Person
having the greatest Number of Votes shall be the President, if such Number be a Majority of the
whole Number of Electors appointed; and if there be more than one who have such Majority, and
have an equal Number of Votes, then the House of Representatives shall immediately chuse by
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Article III
Section 1. The judicial Power of the United States, shall be vested in one supreme Court, and in
such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both
of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at
stated Times, receive for their Services, a Compensation, which shall not be diminished during
their Continuance in Office.
Section 2. The judicial Power shall extend to all Cases, in Law and Equity, arising under this
Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their
Authority; -to all Cases affecting Ambassadors, other public Ministers and Consuls; -to all Cases of
admiralty and maritime Jurisdiction; -to Controversies to which the United States shall be a Party; -
to Controversies between two or more States; -between a State and Citizens of another State; -
between Citizens of different States,-between Citizens of the same State claiming Lands under
Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens
or Subjects.
In all cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State
shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before
mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such
Exceptions, and under such Regulations as the Congress shall make.
The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be
held in the State where the said Crimes shall have been committed; but when not committed within
any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.
Section 3. Treason against the United States, shall consist only in levying War against them, or in
adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason
unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.
The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason
shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.
Article IV
Section 1. Full Faith and Credit shall be given in each State to the public Acts, Records, and
judicial Proceedings of every other State. And the Congress may by general Laws prescribe the
Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.
Section 2. The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens
in the several States.
A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice,
and be found in another State, shall on Demand of the executive Authority of the State from which
he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime.
No Person held to Service or Labour in one State, under the Laws thereof, escaping into another,
shall, in Consequence of any Law or Regulation therein, be discharged from such Service or
Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be
due.
Section 3. New States may be admitted by the Congress into this Union; but no new State shall be
formed or erected within the Jurisdiction of any other State; nor any State be formed by the
Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the
States concerned as well as of the Congress.
The Congress shall have Power to dispose of and make all needful Rules and Regulations
respecting the Territory or other Property belonging to the United States; and nothing in this
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Article V
The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose
Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the
several States, shall call a Convention for proposing Amendments, which, in either Case, shall be
valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of
three fourths of the several States, or by Conventions in three fourths thereof, as the one or the
other Mode of Ratification may be proposed by the Congress; provided that no Amendment which
may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the
first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its
Consent, shall be deprived of it’s equal Suffrage in the Senate.
Article VI
All Debts contracted and Engagements entered into, before the adoption of this Constitution, shall
be as valid against the United States under this Constitution, as under the Confederation.
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and
all Treaties made, or which shall be made, under the Authority of the United States, shall be the
supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the
Constitution or Laws of any State to the Contrary notwithstanding.
The Senators and Representatives before mentioned, and the Members of the several State
Legislatures, and all executive and judicial Officers, both of the United States and of the several
States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test
shall ever be required as a Qualification to any Office or public Trust under the United States.
Article VII
The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this
Constitution between the States so ratifying the Same.
The Word, “the,” being interlined between the seventh and eighth Lines of the first Page, The Word
“Thirty” being partly written on an Erazure in the fifteenth Line of the first Page, The Words “is
tried” being interlined between the thirty second and thirty third Lines of the first Page and the
Word “the” being interlined between the forty third and forty fourth Lines of the second Page.
Attest WILLIAM JACKSON Secretary done in Convention by the Unanimous Consent of the
States present the Seventeenth Day of September in the Year of our Lord one thousand seven
hundred and Eighty seven and of the Independence of the United States of America the Twelfth In
witness whereof We have hereunto subscribed our Names,
Go: WASHINGTON
Amendment I
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise
thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to
assemble, and to petition the government for a redress of grievances.
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Amendment III
No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor
in time of war, but in a manner to be prescribed by law.
Amendment IV
The right of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon
probable cause, supported by oath or affirmation, and particularly describing the place to be
searched, and the persons or things to be seized.
Amendment V
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a
presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in
the militia, when in actual service in time of war or public danger; nor shall any person be subject
for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any
criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without
due process of law; nor shall private property be taken for public use, without just compensation.
Amendment VI
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an
impartial jury of the state and district wherein the crime shall have been committed, which district
shall have been previously ascertained by law, and to be informed of the nature and cause of the
accusation; to be confronted with the witnesses against him; to have compulsory process for
obtaining witnesses in his favor, and to have the assistance of counsel for his defense.
Amendment VII
In suits at common law, where the value in controversy shall exceed twenty dollars, the right of
trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any
court of the United States, than according to the rules of the common law.
Amendment VIII
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual
punishments inflicted.
Amendment IX
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage
others retained by the people.
Amendment X
The powers not delegated to the United States by the Constitution, nor prohibited by it to the states,
are reserved to the states respectively, or to the people.
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(1798)
The judicial power of the United States shall not be construed to extend to any suit in law or equity,
commenced or prosecuted against one of the United States by citizens of another state, or by
citizens or subjects of any foreign state.
Amendment XII
(1804)
The electors shall meet in their respective states and vote by ballot for President and Vice-
President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they
shall name in their ballots the person voted for as President, and in distinct ballots the person voted
for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of
all persons voted for as Vice-President, and of the number of votes for each, which lists they shall
sign and certify, and transmit sealed to the seat of the government of the United States, directed to
the President of the Senate; — The President of the Senate shall, in the presence of the Senate and
House of Representatives, open all the certificates and the votes shall then be counted; — the
person having the greatest number of votes for President, shall be the President, if such number be a
majority of the whole number of electors appointed; and if no person have such majority, then from
the persons having the highest numbers not exceeding three on the list of those voted for as
President, the House of Representatives shall choose immediately, by ballot, the President. But in
choosing the President, the votes shall be taken by states, the representation from each state having
one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the
states, and a majority of all the states shall be necessary to a choice. And if the House of
Representatives shall not choose a President whenever the right of choice shall devolve upon them,
before the fourth day of March next following, then the Vice-President shall act as President, as in
the case of the death or other constitutional disability of the President. The person having the
greatest number of votes as Vice-President, shall be the Vice-President, if such number be a
majority of the whole number of electors appointed, and if no person have a majority, then from the
two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the
purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole
number shall be necessary to a choice. But no person constitutionally ineligible to the office of
President shall be eligible to that of Vice-President of the United States.
Amendment XIII
(1865)
Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the
party shall have been duly convicted, shall exist within the United States, or any place subject to
their jurisdiction.
Section 2. Congress shall have power to enforce this article by appropriate legislation.
Amendment XIV
(1868)
Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction
thereof, are citizens of the United States and of the state wherein they reside. No state shall make or
enforce any law which shall abridge the privileges or immunities of citizens of the United States;
nor shall any state deprive any person of life, liberty, or property, without due process of law; nor
deny to any person within its jurisdiction the equal protection of the laws.
Section 2. Representatives shall be apportioned among the several states according to their
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Amendment XV
(1870)
Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the
United States or by any state on account of race, color, or previous condition of servitude.
Section 2. The Congress shall have power to enforce this article by appropriate legislation.
Amendment XVI
(1913)
The Congress shall have power to lay and collect taxes on incomes, from whatever source derived,
without apportionment among the several states, and without regard to any census of enumeration.
Amendment XVII
(1913)
The Senate of the United States shall be composed of two Senators from each state, elected by the
people thereof, for six years; and each Senator shall have one vote. The electors in each state shall
have the qualifications requisite for electors of the most numerous branch of the state legislatures.
When vacancies happen in the representation of any state in the Senate, the executive authority of
such state shall issue writs of election to fill such vacancies: Provided, that the legislature of any
state may empower the executive thereof to make temporary appointments until the people fill the
vacancies by election as the legislature may direct.
This amendment shall not be so construed as to affect the election or term of any Senator chosen
before it becomes valid as part of the Constitution.
Amendment XVIII
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Amendment XIX
(1920)
The right of citizens of the United States to vote shall not be denied or abridged by the United
States or by any state on account of sex.
Congress shall have power to enforce this article by appropriate legislation.
Amendment XX
(1933)
Section 1. The terms of the President and Vice President shall end at noon on the 20th day of
January, and the terms of Senators and Representatives at noon on the 3d day of January, of the
years in which such terms would have ended if this article had not been ratified; and the terms of
their successors shall then begin.
Section 2. The Congress shall assemble at least once in every year, and such meeting shall begin at
noon on the 3d day of January, unless they shall by law appoint a different day.
Section 3. If, at the time fixed for the beginning of the term of the President, the President elect
shall have died, the Vice President elect shall become President. If a President shall not have been
chosen before the time fixed for the beginning of his term, or if the President elect shall have failed
to qualify, then the Vice President elect shall act as President until a President shall have qualified;
and the Congress may by law provide for the case wherein neither a President elect nor a Vice
President elect shall have qualified, declaring who shall then act as President, or the manner in
which one who is to act shall be selected, and such person shall act accordingly until a President or
Vice President shall have qualified.
Section 4. The Congress may by law provide for the case of the death of any of the persons from
whom the House of Representatives may choose a President whenever the right of choice shall
have devolved upon them, and for the case of the death of any of the persons from whom the
Senate may choose a Vice President whenever the right of choice shall have devolved upon them.
Section 5. Sections 1 and 2 shall take effect on the 15th day of October following the ratification of
this article.
Section 6. This article shall be inoperative unless it shall have been ratified as an amendment to the
Constitution by the legislatures of three-fourths of the several states within seven years from the
date of its submission.
Amendment XXI
(1933)
Section 1. The eighteenth article of amendment to the Constitution of the United States is hereby
repealed.
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Amendment XXII
(1951)
Section 1. No person shall be elected to the office of the President more than twice, and no person
who has held the office of President, or acted as President, for more than two years of a term to
which some other person was elected President shall be elected to the office of the President more
than once. But this article shall not apply to any person holding the office of President when this
article was proposed by the Congress, and shall not prevent any person who may be holding the
office of President, or acting as President, during the term within which this article becomes
operative from holding the office of President or acting as President during the remainder of such
term.
Section 2. This article shall be inoperative unless it shall have been ratified as an amendment to the
Constitution by the legislatures of three-fourths of the several states within seven years from the
date of its submission to the states by the Congress.
Amendment XXIII
(1961)
Section 1. The District constituting the seat of government of the United States shall appoint in
such manner as the Congress may direct:
A number of electors of President and Vice President equal to the whole number of Senators and
Representatives in Congress to which the District would be entitled if it were a state, but in no
event more than the least populous state; they shall be in addition to those appointed by the states,
but they shall be considered, for the purposes of the election of President and Vice President, to be
electors appointed by a state; and they shall meet in the District and perform such duties as
provided by the twelfth article of amendment.
Section 2. The Congress shall have power to enforce this article by appropriate legislation.
Amendment XXIV
(1964)
Section 1. The right of citizens of the United States to vote in any primary or other election for
President or Vice President, for electors for President or Vice President, or for Senator or
Representative in Congress, shall not be denied or abridged by the United States or any state by
reason of failure to pay any poll tax or other tax.
Section 2. The Congress shall have power to enforce this article by appropriate legislation.
Amendment XXV
(1967)
Section 1. In case of the removal of the President from office or of his death or resignation, the
Vice President shall become President.
Section 2. Whenever there is a vacancy in the office of the Vice President, the President shall
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Amendment XXVI
(1971)
Section 1. The right of citizens of the United States, who are 18 years of age or older, to vote, shall
not be denied or abridged by the United States or any state on account of age.
Section 2. The Congress shall have the power to enforce this article by appropriate legislation.
Amendment XXVII
(1992)
No law varying the compensation for the services of the Senators and Representatives shall take
effect until an election of Representatives shall have intervened.
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Stephen Breyer
Born August 15, 1938, in San Francisco, California. Married, three children. Education. Stanford
University, A.B., 1959, Great Distinction; Oxford University, B.A., 1961; Harvard Law School,
LL.B., magna cum laude, 1964. Clerk to the Honorable Arthur J. Goldberg, Associate Justice of the
United States, 1964–65. Harvard University, Assistant Professor, 1967–70; Professor of Law,
1970–80; Professor, Kennedy School of Government, 1977–80; Lecturer, 1980–present. Visiting
Professor, College of Law, Sydney, Australia, 1975; University of Rome, 1993. Nominated by
President Jimmy Carter to the United States Court of Appeals for the First Circuit, took oath of
office December 10, 1980. Nominated by President Bill Clinton as Associate Justice of the United
States; took oath of office August 3, 1994.
Elena Kagan
Born in New York, New York, on April 28, 1960. She received an A.B. from Princeton in 1981, an
M. Phil. from Oxford in 1983, and a J.D. from Harvard Law School in 1986. She clerked for Judge
AbnerMikva of the U.S. Court of Appeals for the D.C. Circuit from 1986-1987 and for Justice
Thurgood Marshall of the U.S. Supreme Court during the 1987 Term. After briefly practicing law
at a Washington, D.C. law firm, she became a law professor, first at the University of Chicago Law
School and later at Harvard Law School. She also served for four years in the Clinton
Administration, as Associate Counsel to the President and then as Deputy Assistant to the President
for Domestic Policy. Between 2003 and 2009, she served as the Dean of Harvard Law School. In
2009, President Obama nominated her as the Solicitor General of the United States. After serving
in that role for a year, the President nominated her as an Associate Justice of the Supreme Court on
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Anthony M. Kennedy
Born July 23, 1936 in Sacramento, California. Married, three children. Education. Stanford
University, B.A., 1958; Harvard Law School, LL.B., 1961. Private Practice in Sacrament, 1961–75.
Professor of constitutional law, McGeorge School of Law, University of the Pacific, 1965–88.
Nominated by President Gerald Ford to United States Court of Appeals for the Ninth Circuit, took
oath of office May 30, 1975. Nominated by President Ronald Reagan as Associate Justice of the
United States, took oath of office February 18, 1988.
Antonin Scalia
Born March 11, 1936 in Trenton, N.J. Married, with nine children. Education. Georgetown
University, A.B., 1957; Harvard, LL.B., 1960; note editor. General counsel, Office of
Telecommunications Policy, Executive Office of the President, 1971–72. Chairman, Administrative
Conference of the United States, 1972–74. Assistant Attorney General, Office of Legal Counsel,
U.S. Department of Justice, 1974–77. Law Teaching. Professor of Law, University of Virginia,
1967–74 (on leave 1971–74); scholar in residence, American Enterprise Institute, 1977; visiting
professor of law, Georgetown University, 1977; professor of law, University of Chicago, 1977–82;
visiting professor of law, Stanford University, 1980–81; Straus Distinguished Visiting Professor,
Pepperdine University, Summer 1990. Nominated by President Ronald Reagan to the United States
Court of Appeals for the District of Columbia Circuit, took the oath of office August 17, 1982.
Nominated by President Reagan as Associate Justice of the United States, took the oath of office
September 26, 1986.
Sonia Sotomayor
Born June 25, 1954, in Bronx, New York. She earned a B.A. in 1976 from Princeton University,
graduating summa cum laude and receiving the university’s highest academic honor. In 1979, she
earned a J.D. from Yale Law School where she served as an editor of the Yale Law Journal. She
served as Assistant District Attorney in the New York County District Attorney’s Office from
1979–1984. She then litigated international commercial matters in New York City at Pavia &
Harcourt, where she served as an associate and then partner from 1984–1992. In 1991, President
George H.W. Bush nominated her to the U.S. District Court, Southern District of New York, and
she served in that role from 1992–1998. She served as a judge on the United States Court of
Appeals for the Second Circuit from 1998–2009. President Barack Obama nominated her as an
Associate Justice of the Supreme Court on May 26, 2009, notably making the case for empathy as a
prime consideration for appointment. See Douglas W Kmiec, The Case for Empathy, America
magazine (May 11, 2009). She assumed by bench August 8, 2009.
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